Activists file suit demanding study of proposed Freezer Queen tower

Local activists who feel like they were shut down and ignored during public hearings about a planned waterfront development have filed a lawsuit demanding the project be put on hold until environmental studies can be completed. The development plan calls for demolition of the Freezer Queen building on Buffalo’s Outer Harbor and construction of a 23-story apartment tower.

The suit is asking for a temporary restraining order that would prevent any site preparation work, as well as a preliminary injunction against new construction while the case is being heard.

In 70 pages of court papers filed Tuesday, the group accuses the developer, Queen City Landing, and the city’s Planning Board and Common Council of acting in concert to “fast-track” approval of the project, which first was presented to the Planning Board three months ago. In doing so, the group says, actors ignored zoning and environmental impact requirements.

The suit filed in State Supreme Court notes that for the first seven years that the property was owned by Queen City, and as recently as November, the developer planned to reuse the 90-year-old industrial building by converting it to waterfront housing.

Four months after that last reuse proposal was sent to the city, the developer changed course by submitting an application to knock down the existing structure and build a glass-and-steel tower instead, with a 93,000-square-foot parking ramp attached.

The site, which is the only privately-owned parcel on the Outer Harbor, is adjacent to the Small Boat Harbor and near two nature preserves, Tifft and Times Beach. The Planning Board held hearings on the project’s possible impact on the surrounding area, local wildlife and waterfront aesthetics, and heard a number of objections by local planners and environmentalists about what they called “the inappropriateness of the scale of the tower.”

Despite those concerns, the suit said that on May 31, city Planning Director Nadine Marrero provided the board with a statement saying the building would have “no significant adverse impact on the environment and no Environmental Impact Statement need be prepared.”

The board approved the site plan and design, and gave permission to subdivide the property and demolish the Freezer Queen building.

On June 21, the Common Council granted a restricted use permit for the Queen City Landing project in a 6-to-3 vote.

The lawsuit asks that all those decisions be set aside.

Arthur J. Giacalone, attorney for the petitioners, said that the board and Council’s decision that the building would have no adverse impact was based on essentially nothing.

He said no scientific studies were done for the developer, and no engineering analysis was performed on how the soaring structure would affect birds and fish, views and traffic, or even the landfill on which the 328-foot-high building would be constructed.

In the filing, Giacalone observes that the speedy, post-holiday-weekend approval by the board was intended to circumvent thoughtful planning policies. He indicates a previous case in New York City that advocated for “‘judicial vigilance’ when ‘sophisticated developers and compliant officials’ maneuver through and around environmental and land use laws.”

The case is being brought by four people with long and rich backgrounds in environmental issues, waterfront planning and public advocacy. All provided the board and city with input in writing and in person – input Giacalone says was received without comment or consideration.

The petitioners are:

• Margaret Wooster, an adjunct urban planning and ecology faculty member at the University at Buffalo, founding member of Friends of the Buffalo River, former executive director of Great Lakes United and a senior planner with Buffalo Niagara Riverkeeper. She also has written a book about the restoration of waterways feeding the Great Lakes called “Living Waters.”

• Writer and photographer Jay Burney, who has spent 40 years working on the Outer Harbor and Buffalo shoreline, and is chairman of the Friends of Times Beach Nature Preserve.

He shares his work with community, school and college audiences, and was named a formal stakeholder in the brownfield remediation for the Outer Harbor. He also was chairman for the Niagara River Globally Significant Important Bird Area Coalition.

• Lynda K. Stephens, a member of the Waterfront Committee of the League of Women Voters of Buffalo Niagara and advocate for public participation in planning for the Outer Harbor.

• James E. Carr, who worked on waterfront planning in Buffalo for 40 years. He was executive director of the city and county Urban Waterfront Advisory Committee, and has held leadership positions in local and regional chapters of the Sierra Club.

None of the petitioners had public objections to Queen City’s earlier plans for the property and the existing building, Giacalone said.

“They have spent their careers dedicated to the issues involved in this lawsuit,” he said. “All we are asking is for well-thought-out planning for the Outer Harbor, and our point is that the law is there for a reason, to apply equally to all. We’re not looking to obstruct something for the sake of obstruction.”

The group’s objection is that, without the environmental study, the impact of the building won’t be known until the structure is up.

“If they do an honest EIS and there’s no problem, there is no complaint,” he said. “But I think they know that a study could cause them problems.”

State Supreme Court Justice Donna M. Siwek is scheduled to hold a conference with the parties about the lawsuit on Wednesday.

Giacalone points out that the site’s owner, Gerald A. Buchheit Jr., has had years to consider what to do with the property.

He paid $3 million for it in November 2007 and, the suit says, has since “taken no visible steps to maintain or preserve the former Freezer Queen building.”

In one conciliatory note, Giacalone said that a report is expected Tuesday about the asbestos removal that needs to be done before the Freezer Queen building can be demolished. He said that, depending on its recommendation, he may withdraw his request for a temporary restraining order for that work, since it would have to be done whether the building was reused or taken down.